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Guy Hollebon

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How to avoid the Employment Tribunal


Statistics released recently by the Tribunal Service show that the total number of claims lodged with an Employment Tribunal in 2009-10 was 236,100 compared to 151,000 for 2008-09. This amounts to an increase in the number of claims made to an Employment Tribunal by over 56%. In this article Guy Hollebon, Head of Employment Law at Bristol and London based Bevans Solicitors, analyses the dramatic rise in claims and gives top tips to employers to minimize the risk of being taken to the Tribunal.

The rise in the number of claims made to an Employment Tribunal by over 56% can in part be explained by the global economic slump and the increase in staff being made redundant. A more careful analysis of the figures reveals that a partial explanation for such a large increase to the number of claims is that many are equal pay claims. It is not for this article to go into the intricacies of equal pay claims but a significant number have been issued by unions acting on behalf of their members. Finally, the increase in claims may be a sad indictment on the ever increasing compensation culture which is developing.

Whatever the underlying reasons for the increase the fact remains that all businesses face greater risks of Tribunal claims. Even if they are ultimately successfully defended there will inevitably be a cost to the business for lawyers fees, the management time spent dealing with the claim and the lost opportunities which flow from this and possible reputational damage to the business – Employment Tribunals are public hearings and members of the press often sit in.

There are however a number of easy ways to avoid claims, or at least to minimise the risks of claims. I will set out five key steps.

  1. Get your employment documentation in place. it is a legal requirement to give all employees a written statement of particulars of employment containing set information within two months of the employee’s start. A failure to comply can lead to compensation of two to four weeks pay being ordered in favour of an employee. A clear and well drafted contract with appropriate policies and procedures supporting the contract will go a long way to reduce disputes arising. If a matter is dealt with in the contract (which has been signed as accepted by the employee) there is little room for dispute. The employee may not like it but they have agreed to those terms. Disputes frequently arise where something has not been included within a contract or policy. For example the rate of holiday pay – is it based on total days in the year or just working days. An express clause in the contract will make the position crystal clear.
  2. Management should not duck issues. It usually pays in the long run to grasp the nettle. We frequently get instructed when a problem has been allowed to fester and has not been addressed at an early stage and the conflict between employer and employee has developed into a full blown, and costly, dispute. If you are concerned about an employee – whether it is related to their conduct, performance, absence or other – it is better to address the issue early on.
  3. Make sure that a fair procedure is followed. Having decided to grasp the nettle it is important that you do the right thing. Employment law is a mine field now and it does pay to get proper advice, either from an HR professional or a specialist employment lawyer. Tribunals see many claims where the employer is entitled to take action against a recalcitrant employee but it gets the procedure wrong and this then leads to a finding of unfair dismissal in favour of the employee. The process should not be hasty. It should be carefully planned and implemented.
  4. Deal with employee grievances. Complaints from employees should not be ignored or brushed under the carpet. A grievance, whether informal or formal, is an early warning that there is a problem which needs addressing. It therefore presents an opportunity to resolve the issue before it develops into a full blown dispute.
  5. Sometimes you can’t avoid a claim. After all it is free to lodge a claim with the Tribunal and therefore a disgruntled employee may think they have nothing to lose by lodging a claim. Provided that the employer has followed a fair procedure and has generally treated the employee fairly and reasonably then there should be a good arguable defence to the claim. Moreover, Tribunals are increasingly trying to identify weak claims at an early stage and where appropriate will make a costs order where claims were misconceived and had no reasonable prospects of success but were continued. A good employment lawyer will be able to put the best arguments across on the question of costs.

For further information contact Guy Hollebon at [email protected] or visit

4 Responses

  1. Snr Management Backing up Mangers undertaking Performance Proces


    Anthony makes a very good point  –  and it is shared by other managers.  In some research recently completed with LSIS ( middle managers, that completed a survey on performance management, reported that they felt least supported by their Snr Management team out of a selection that included HR, organisational cultural and their line manager.

    But we need to realise that the manager themselves is part of the ‘system’ that gets this wrong and there are things that they need to take responsibility for BEFORE taking action.  When I train line managers on performance management, and they are facing a particularly difficult situation with the likelihood of counter-accusations (great defense tactic) or long-term stress being claimed, then I tell them NOT to take any action at all until they are certain that HR, senior management, legal advisors, the board, or who ever is likely to get involved, is totally committed to the seeing it through to the end.  That there is a known approach and strategy for every eventuality.  It might take some time for these ‘What if?’ discussions to take place before anything is instigated with the poor performing individual.  

    One manager I know completed 6 months of discussions with his Snr Manager before he was satisfied that the Snr Manager was completely joined up with him on the action that need to be taken.  When he did finally have the conversation with the individual concerned it went very smoothly indeed  –  perhaps because he was talking with a firmness and confidence gained from knowing that he had complete backing from those above?

    Managers  –  don’t run the risk of being the victim in this  –  take the responsibility for ensuring that your organisation has the necessary conversations BEFORE action is taken.  And if they don’t engage in the conversation or back you?  Well, what you do with that information is your decision!

  2. Grasping the nettle

    With regards to point 2.

     Many advisors/executives criticise us managers for not ‘grasping the nettle’ early on yet they are the ones who are actually ‘discouraging’ us rather than ‘encouraging’ us managers to do so.

     There are countless examples where managers have attempted to address a poor performance issue only to become the ‘villain’ themselves. There are also countless examples where executives have sided with employees following grievance investigations to appease the situation. Many executives and advisors feel it is safer to ‘hang the manager out to dry’ rather than taking on the risk of potential litigation from an employee.


    Perfect example:

     And this is a legal firm!!

     I have had to tackle poor performance issues in my career; it is complicated, hard work, uncomfortable and risky. Like many other managers, I have personally experienced a vexatious and spurious grievance and it is something I would not like to wish on others. What my company overlooked also was the effect my grievance had on other managers within the organisation. Because of what I went through they all backed off from ‘grasping the nettle’.


     Why when a grievance is taken out against a manager are the ‘investigators’ hell bent on finding fault with the manager and overlooking the poor performance of the employee?

     Why do ‘investigators’ go into fault finding with the manager but fact finding with the employee, often help them build a case that wasn’t there!!

     Why do ‘investigators’ resort to the un-defendable, subjective ‘style’ criticism of managers, do they not understand the difference between assertive and aggressive behaviour?

     Who/what actual training do ‘investigators’ receive in handling grievances because my experience is that they often make matters worse in the long-run for organisations.

     Excuse the rant but I get emotional when people who have never had to personally tackle a difficult poor performance issues or who have not personally experienced the fall out from doing so, criticise and preach managers about ‘grasping the nettle’.


    The manager in the case study is quite right in her actions, because the organisation did not support her in the tackling of this known poor performer they actually made this manager’s job untenable.

     HR need to take note of this case because it could open a flood gate of grievances from managers against organisation for not support them when they ‘grasp the nettle’.




  3. Avoiding Tribunals

    What a great posting with important pieces of advice.  Like Deborah, in my experience it is managers not addressing issues early, when they are simple to resolve, that leads to bigger problems further down the line.  Often managers do not feel confident in how to address the issue and how to language the feedback clearly, fairly and firmly.  In actual fact the correct procedure and process to follow is quite simple and fair in its approach.  Before taking a formal disciplinary action it is important for managers to pause, gain support from experts, HR, other experienced managers and PLAN their message and approach.  Keep the message simple, clear and effective.  This is a skill that all managers need to acquire  –  not only for the benefit of the organisation but, and perhaps more importantly, for the individual concerned to have the opportunity to improve and make necessary changes for a successful future.

  4. avoiding tribunals
    Great article, sensible advice which is actually so easy to do. After 30 years experience in senior management, half of it in Hr, it is often the 2nd one, Managers dealing with issues promptly, objectively and in a reasonable manner that lets organisations down – thanks for this will Tweet to allow more people to access your plain English advice – regards D


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